Agencies process federal employees' EEO complaints under
regulations promulgated by EEOC at 29 C.F.R. Part
1614. Employees who are unable to resolve their concerns
through counseling can file a complaint with their agency.(7) The agency will either dismiss(8) or accept the complaint. If the
complaint is accepted, the agency must conduct an investigation,
and in most instances, issue the investigative report within 180
days from the date the complaint is filed.(9)

After the employee receives the investigative report, s/he may
(1) request a hearing before an EEOC Administrative Judge who
issues a decision which the employee or the agency may appeal to
EEOC's Office of Federal Operations, or (2) forgo a hearing and
request a final agency decision. An employee who is dissatisfied
with a final agency decision or the agency's decision to dismiss
the complaint may appeal to EEOC. The complainant or agency may
also request EEOC to reconsider its decision from the appeal. The
complainant has the right to file a civil action in a federal
court.

As the EEO complaint process has become increasingly more
costly, adversarial, and lengthy, EEOC has encouraged agencies to
promote and expand the use of alternative dispute resolution (ADR)
as a means of avoiding more formal dispute resolution
processes.

Used properly, ADR can provide fast and cost-effective results
while at the same time improve workplace communication and
morale.(10)

Instances of counseling decreased by 5.8% and formal complaints
declined by 5.9% from FY 2003 to FY 2004. Of the 42,412 instances
of pre-complaint counseling, only 17,878 individuals filed 19,024
formal complaints in FY 2004.(11)
The number of formal complaints filed represents 44.9% of all
pre-complaint counseling activities in FY 2004. As Figure 2 shows,
over the past five fiscal years, the number of pre-complaint
counseling activities has fluctuated between a high of 56,275 in FY
2002 and a low of 42,412 in FY 2004, while the number of complaints
filed by individuals has steadily decreased. During the same
five-year period, the number of formal complaints filed continued
to represent less than 50% of all pre-complaint counseling
activities. See Figure 2. Significantly, we note that while the
United States Postal Service constituted 28.3% of the workforce, it
accounted for over 40% of all EEO counselings, as well as all
complaints filed, investigated and closed in FY 2004.

Figure 2 - Counseling to Formal Complaints Filed FY 2000 - FY
2004

* Instances of counselings by ADR Intake Officers were excluded
due to concerns about the accuracy of the data.

National Endowment for the Arts Had Highest
Percentage of Individuals Who Completed Counseling Per Work
Force

Table 5 shows that in FY 2004, the National Endowment for the
Arts reported the highest percentage of individuals who completed
counseling per work force (21.2%), while the percentage for the
government-wide average was 1.4%. Agencies that had fewer than 25
completed counselings were not included in the ranking. Table 1 in
Appendix IV lists this information for all agencies is located at
www.eeoc.gov.

Table 5 - Agencies With the Highest Percentage of
Individuals Who Completed Counseling Per Work Force In FY
2004

Agencies

Total Work Force

Percentage of Individuals Who Completed
Counseling

National Endowment for the
Arts

165

21.2%

Commodity Futures Trading
Commission

505

19.8%

Broadcasting Board of
Governors

1,829

5.9%

Defense - Office of Inspector
General

1,289

4.0%

Office of Personnel Management

3,698

2.9%

Office of Personnel Management Had Highest
Percentage of Individuals Who Filed Complaints Per Work Force

As shown in Table 6 below, the Office of Personnel Management
reported the highest percentage of individuals who filed complaints
(complainants) per work force (1.8%), while the percentage for the
government-wide average was 0.6% in FY 2004. Agencies that had
fewer than 25 complaints filed were not included in the ranking.
Table 1 in Appendix IV contains this information for all agencies
is located at www.eeoc.gov.

Table 6 - Agencies With the Highest Percentage of
Individuals Who Filed Complaints Per Work Force FY 2004

In FY 2004, ADR was used in 43.3% of all instances of EEO
counseling, which represents an increase of 1 percentage point from
the ADR participation rate (42.4 percent) in FY 2003. See Figure 3.
This increase may be due to an ADR offer rate that climbed from
73.0 percent in FY 2003 to 79.5% in FY 2004.

The U.S. Postal Service reported the highest ADR participation
rate in the pre-complaint process (72.3%), whereas the
government-wide average was 43.3% in FY 2004. See Table 7. The ADR
participation rate is obtained by dividing the number of cases
processed in ADR by the total number of instances of counseling.
Agencies that had fewer than 25 cases processed in ADR were not
included in the ranking. See Table 7 in Appendix IV for information
on all agencies which is located at www.eeoc.gov.

On average, agencies failed to meet timeliness requirements for
EEO counseling in 23.7% of all completed counselings. Agencies are
required to complete counseling in 30 days except when there is a
60-day extension due to an ADR election or the complainant agrees
in writing to an extension.

Broadcasting Board of Governors Had Highest
Number of Timely Completed Counselings

Of the 31 agencies that timely completed 100% of the counselings
for FY 2004, the Broadcasting Board of Governors reported the
highest number of counselings. See Table 8. The government-wide
average for timely completed counselings was 76.3% in FY 2004;
although, without the Postal Service statistics, the timely average
was 83.0%. Agencies that had fewer than 25 counselings were not
included in the ranking. Table 3 in Appendix IV contains this
information for all agencies and is located at www.eeoc.gov.

Best Practices -
Improving Counseling Times

One of the purposes for pre-complaint resolution efforts is to
resolve existing disputes early on to decrease the chances of
future disputes between the parties. Although the EEO resolution
rate (the sum of the total settlements and total withdrawals
divided by the total completed counselings, see Table 4 in Appendix
IV) decreased by 2.7% from FY 2000 to FY 2004, fewer individuals
were counseled multiple times. See Figure 2. In fact,
the number of individuals who sought counseling multiple times
decreased from 10.6% in FY 2003 to 6.0% of all counselings in FY
2004. Consequently, resolutions at the pre-complaint stage have
resulted in fewer formal complaints.

National Endowment for the Arts and Defense
Office of Inspector General Report Highest Pre-Complaint Resolution
Rate (No complaint filed)

In FY 2004, the National Endowment for the Arts and Defense
Office of Inspector General reported the highest pre-complaint
resolution rate (100.0%), whereas the government-wide average was
50.7%. See Table 9. Agencies that had fewer than 25 counselings
were not included in the ranking. Table 4 in Appendix IV contains
this information for all agencies and is located at www.eeoc.gov.

The Defense Dependent Education Activity reported the highest
ADR resolution rate in the pre-complaint process (100.0%), whereas
the government-wide average was 48.7% in FY 2004. See Table 10.
When the U.S. Postal Service resolution rate (45.6%) is excluded
from the government-wide average, the ADR resolution rate increased
to 57.4% in FY 2004. The ADR resolution rate is obtained by
dividing the number of ADR settlements and withdrawals from the EEO
process by the number of ADR closures. Agencies that had fewer than
25 ADR closures were not included in the ranking. Table 5 in
Appendix IV contains this information for all agencies and is
located at www.eeoc.gov.

The monetary benefits awarded during the pre-complaint phase,
shown in Table 11, dropped significantly since FY 2000. The data
showed a slight increase in the average amount of monetary benefits
from FY 2003 to FY 2004.

Of the 19,024 complaints filed in FY 2004, the top basis alleged
was reprisal (7,782) and the top issue was non-sexual harassment
(5,175). As shown in Tables 12 and 13, this trend remained
unchanged for the past five years. Notably, the complaints alleging
age discrimination, for the second time in five years, exceeded
race (Black) and sex (Female), the other most prevalent bases
alleged. Conversely, the top three issues alleged in complaints
filed remained consistent over the same five-year period.

In FY 2004, agencies were timely in completing investigations
only 42.7% of the time, (including where a written agreement
extended the investigation was present or when complaints were
consolidated or amended). The percentage of timely completed
investigations increased to 51.6% government-wide when the U.S.
Postal Service is not included. Agencies averaged 280 days to
complete an investigation in FY 2004, a slight increase from the
267 day average in FY 2002 and FY 2003. See Figure 4 below.

Federal agencies fail to timely investigate allegations of
discrimination for many reasons. EEOC's review of the investigatory
practices of a sampling of agencies revealed, among other reasons,
that poorly staffed EEO offices, unnecessary and time consuming
procedures, delays in obtaining affidavits, and inadequate tracking
and monitoring systems contributed to untimely investigations. For
more information, see Federal Sector Investigations - Time
and Cost, issued June 2004 and Attaining a Model
Agency Program: Efficiency at www.eeoc.gov/federal.

Tennessee Valley Authority: 100% Timely
Completed Investigations

As shown in Table 14, the Tennessee Valley Authority was the
only agency that timely completed investigations 100% of the time.
Government-wide agencies only timely completed investigations 42.7%
in FY 2004. Agencies that had fewer than 25 investigations filed
were not included in the ranking. Table 9 in Appendix IV contains
this information for all agencies and is located at www.eeoc.gov.

EEOC regulations require an agency to take a final action on
each formal complaint filed. Table 15 below provides a breakdown
with processing time for all final agency actions. Agencies may
issue a decision dismissing a complaint on procedural grounds such
as untimely EEO counselor contact or failure to state a claim.
Government-wide, agencies took 150 days to issue a decision
dismissing a complaint on procedural grounds. In general,
acceptance letters/dismissal decisions should be issued well in
advance of the 180-day time limit to complete an investigation. A
suggested rule-of-thumb is to issue these actions within 60 days of
the filing of the formal complaint.

An agency may also issue a decision after an investigation,
either finding discrimination or finding no discrimination. In FY
2004, agencies were timely in issuing final agency merit decisions
43.6% of the time. Commission regulations require agencies to issue
final decisions within 60 days of complainant's request for such a
decision or within 90 days after completion of an investigation if
complainant has not requested either a final decision or an EEOC
hearing.

Finally, when an EEOC Administrative Judge has issued a
decision, the agency may issue a final order either implementing
the Administrative Judge's decision or not implementing the
Administrative Judge's decision and simultaneously appealing to the
EEOC. In FY 2004, agencies issued 4,829 final orders implementing
and 114 orders not implementing the Administrative Judge's
decision. Commission regulations require agencies to issue an order
within 40 days of receiving the Administrative Judge's
decision.

In FY 2004, the Defense Commissary Agency reported the highest
percentage (100%) of timely issued merit decisions without an
Administrative Judge decision (among those agencies which issued 25
or more). See Table 16. Government-wide, only 43.6% of agency merit
decisions were timely issued. We note that nine agencies issued
100.0% of their merit decisions in a timely fashion, but 8 of them
issued less than 25 total merit decisions. Agencies that had fewer
than 25 merit decisions without a hearing were not included in the
ranking. See Table 11 in Appendix IV for this information on all
agencies which is located at www.eeoc.gov.

Since FY 2000, findings of discrimination have increased in the
federal government. Table 17 below shows that both the total number
of merit decisions and the number of findings of discrimination
have increased over the past three years.

Average monetary benefits awarded in resolution of formal EEO
complaints decreased by 9.5% between FY 2003 and FY 2004. Table 17
above shows the total monetary benefits awarded during the formal
complaint process for the past five fiscal years, while Figure 5
indicates what portion of these benefits were for compensatory
damages and attorneys' fees.

In order to achieve a model EEO program, agencies must meet the
six essential elements discussed in detail in EEO Management
Directive 715. The fifth element, "Efficiency," encompasses the
timely filing of required reports with the EEOC. Appendix III
contains the federal agencies' compliance with the requirements to
timely submit their Form 462 and MD-715 reports.

EEOC Form 462 reports provide information on discrimination
complaint processing data and alternative dispute resolution
efforts. Form 462 reports are due on October 31st of
each year.

Equal Employment Opportunity Management Directive 715 (MD-715)
applies to all executive agencies and military departments (except
uniformed members) as defined in Sections 102 and 105 of Title 5.
U.S.C. (including those with employees and applicants for
employment who are paid from non-appropriated funds), the United
States Postal Service, the Postal Rate Commission, the Tennessee
Valley Authority, the Smithsonian Institution, and those units of
the judicial branch of the federal government having positions in
the competitive service. These agencies and their Second Level
Reporting Components (as listed in Appendix III) were required to
file EEOC FORM 715-01.

The MD-715 reports provide information on an agency's progress
in achieving the model EEO program elements, elimination of
barriers, and ability to conduct a wide array of examinations of
the agency's Title VII and Section 501 work force profiles. EEOC
Form 715-01 are timely filed if postmarked or received before
January 31st of each year.

7. Concerns involving both
allegations of discrimination and agency actions appealable to the
Merit Systems Protection Board follow one of the processes set
forth at 29 C.F.R. § 1614.302.

8. There are several reasons an
agency may dismiss a complaint, including the complainant's failure
to state a claim, timely contact a counselor, or provide necessary
information to the agency. See 29 C.F.R. §
1614.107(a)

9. The 180-day period may be
extended 90 days if both parties agree. See 29 C.F.R.
§ 1614.108(e). The regulations also extend the 180 day time
limit for submitting the investigative report to the complainant
for consolidated and amended complaints to the earlier of 180 days
from the date of the most recent consolidated or amended complaint,
or 360 days from the date of the earliest pending complaint.
See 29 C.F.R. § 1614.108(f).